Delay, Delay, Delay

The lawless tweaking of Obamacare’s provisions continues.

Jay Cost

March 17, 2014, Vol. 19, No. 26

Another week, another Obamacare delay, improvised by the administration. The latest is particularly laughable. It seems the administration miscalculated when it first decided to delay Obamacare’s mandated minimum coverage requirements for health insurance. According to the Hill: “A one-year moratorium pushed the deadline beyond the midterm election, but insurers must send out cancellation notices 90 days in advance. That would mean notices in the mail by October 1, five weeks before voters go to the polls.” So now Obama will extend the deadline even further, lest voters realize before pulling the lever that they’re about to lose health insurance plans the administration deems substandard.

Conservatives let out a collective chuckle over this news, but only to keep from sobbing. After all, what does this say about the rule of law in the United States? Ours is supposed to be a system of checks and balances: The legislature drafts the laws; the executive implements them; the courts interpret them. How has the administration gotten away with assuming all three roles? This cannot be a sign of a well-functioning republic.

James Madison’s description in Federalist 51 sounds like a smoothly operating governmental machine. “Ambition must be made to counteract ambition,” was how he put it. The idea is that our government would be self-correcting. Any transgression by one branch would bring a rebuke from another, thus preserving a balance.

But the rule of law has regularly been sacrificed at the altar of presidential ambition. Madison himself was the architect of a foreign policy that saw executive encroachments that would raise an eyebrow even today. During the Jefferson administration, the government sought to restrain trade with Britain and France, and in so doing the president strong-armed state governments and sought to use the Navy as a domestic police force.

A generation later, the capricious Andrew Jackson would regularly mistake his political self-interest for the public good. Celebrated as a staunch nationalist for standing up to the South Carolina nullifiers, Jackson looked the other way when Georgia ignored the (federally guaranteed) treaty rights of Native Americans because it furthered a policy goal of his. Worse, he acted in a blatantly illegal fashion by removing Treasury deposits from the Second Bank of the United States and placing the money in banks controlled by his supporters.

Teddy Roosevelt has often been celebrated as a model for vigorous executive action, but as Bowdoin College’s Jean Yarbrough convincingly argues, TR promulgated a theory of executive power during the 1902 coal strike that basically put him above the law. During World War I, the Wilson administration all but ignored the First Amendment as it threw people in jail for opposing a war that was not terribly popular.

FDR would have a similar disregard for the law, at least when it came to the dispensing of federal work relief (read: patronage). FDR and Harry Hopkins deployed jobs and revenue from the Works Progress Administration to undermine the independence of local Democratic party officials. They destroyed Tammany Hall in New York, bankrolled pro-FDR machines in Chicago, Jersey City, and Pittsburgh, and encouraged their cronies to use the WPA to “purge” the Senate of conservative Democrats.

The regularity with which presidents step outside their constitutional limits suggests that the cause is ultimately structural. And indeed it is inherent in our system as it has evolved over the centuries. The Framers were most concerned about congressional encroachment upon the executive and judicial branches. This helps account for why Congress’s powers are enumerated as well as why there are two chambers of Congress.

The Framers did not anticipate the modern presidency. The democratization of the presidential office did more than anything to disrupt the original design, ironic considering that the efforts of Madison and Jefferson in the 1800 presidential contest began this transformation.

A democratic presidency has had two profound effects. First, it gave rise to the idea that the president is the tribune of the people, the sole representative of the public good, and therefore endowed with authority that is not necessarily laid out in the Constitution. Jackson, TR, and Wilson all contributed mightily to the development of this viewpoint, and from there it is but a hop, skip, and a jump to ignoring Congress, the courts, and the law itself. And because this argument implicitly flatters the voters, it’s harder for opponents to prevail in the court of public opinion.

Second, it facilitated the rise of the national parties. Previously, party coalitions had been state-based or regional; however, competing for the presidency is a nationwide effort, which requires a nationwide organization. Nothing has done more to degrade the logic of Federalist 51. Under Madison’s theory, members of Congress should resist encroachments from the executive branch because they are institutional rivals. But, in the party system, the president has a partisan alliance with (roughly) half of the legislature. Moreover, the alliance is unequal, as the political survival of congressmen depends much more on the president than the president’s survival depends on them. This makes it difficult for Congress to assert its institutional prerogatives in the face of executive overreach.

Thus, presidents have a ready-made excuse for ignoring the law (“I speak for the people!”), and they can usually count on Congress to do nothing to stop them. Little wonder that presidents have been disposed to color outside the lines. Little wonder as well that Obama’s approach to the Affordable Care Act—princeps legibus solutus est—has been met only by impotent protests from his opponents. There is little to do but wait him out.

Conservatives can meanwhile take grim satisfaction that the Obamacare delays are clearly coming from a position of weakness, not of strength. Obamacare is a vast system of penalties and rewards designed to reshape the American health care system. The only way it can possibly sustain itself is if certain groups are made worse off, while others are made better off. Yet the administration has thus far systematically refused to allow the law to harm any politically powerful bloc. This may make for good short-term politics, but it is terrible for the law’s sustainability.

Broadly speaking, all of those who were supposed to be harmed by Obamacare were paying an indirect tax that Obama and his congressional allies did not want to impose directly. Granting group after group waiver after waiver inoculates them from the “taxes” they were set to pay, but those costs will have to be borne somehow, either in reduced benefits for the law’s winners or (more likely) greater withdrawals from the Treasury.

Of course, while the voters frequently complain about runaway federal spending, they are often averse to doing anything about it. But with Obamacare, there is a twist, for the federal government has more or less become responsible for maintaining the profit margins of the health insurance industry. This sort of deficit spendingwill not be politically sustainable. The country has been known to tolerate government support of business bottom lines, but never to this extent, and never for an industry that is so massively unpopular (in no small part because of the demagoguery of Obama and his minions).

This suggests one of two outcomes. Either the administration will start deploying Obamacare’s “sticks” and not just its “carrots,” forcing people to pay those implicit taxes, or the law’s opponents will gain a decisive advantage in the court of public opinion as Uncle Sam becomes the backstop for the shareholders of WellPoint, Aetna, et al. Sooner or later, the law will be either obeyed or rewritten.

Ultimately, Obama’s problem here is that he is in the minority on the issue of Obamacare, although like a good Jacksonian “sovereign,” he is convinced that his crude political interests are necessarily those of the people at large. But because Obamacare is so unpopular, his maneuverings will prove in the end a relatively minor abuse of the rule of law. As Madison writes in Federalist 10 about the dangers of minority factions:

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.

Sooner or later, this clogging of the administrative levers of government will come to a conclusion. Either the administration will execute this law in a way that makes it broadly popular, or it will be substantially reformed, if not repealed altogether. In the meantime, we just have to remember that Madison’s “republican principle” is realized at the ballot box. The ultimate way to address the abuses of the Obama administration is to make the case, patiently and carefully, with the American people, and allow them to rebuke him at the ballot box in November.